The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-01-15

ping him upon the shoulder whispered into his
Lar for half minute Having thus obtruded
himself for brief moment into conspicuty by
showing that he was still on speaking terms with
Democratic greatness, he retired to a side seat,
where ne blended with the remainder of the au-
dience.
moment later ex-senator Mcdonald came
Into the courtroom, his face beaming with
generosity. and approaching Judge Turpe, took
the latters hand The Judge seemed somewhat
surprised and Uncle Joe had shaken his hand for
full minute before the Democratic nominee for
senatorial honors recovered himself sufficiently
to return the grasp. When be did. of course, he
had to shake the generous old gentlemans
hand as long as his had been shaken. This, OF
course, unduly prolonged the exercise and at
tractsd the attention of everybody. A few
words passed in a low tone of voice, but no one
except the two distinguished shakers heard what
was said Judge Turpie's face is noted for its
lack of color. but as the warm hearted Uncle
Joe congratulated him, his face flushed, and he
appeared to be greatly moved.
When the courtroom was called to order, the
defendant. Lieutenant-governor Robertson,
through his attorneys, Attorney general Mich
ener and W. II. Fl Miller. filed counter affidavits
to the complaint of Alonzo Green Smith, that
he had usurped the duties OF the lieutenant
governorship. The affidavit Of Lieutenant
governor Robertson recited the facts causing
his election, and of the proceedings Of Monday
last, when the vote on acknowledgements was
counted by the Speaker OF the House, wherein
1t was shcwn that ne had been elected Lieuten-
antgovernor. The affidavit further alleges that
he had no intention to use violence in assuming the
duties of his Office as alleged in the Smith COM
plant He further averred that he had never
counseled force and violence as charged, and the
atidavits of A. nj. Kennedy, L. M. Campbell, j.
n. Huston and others were presented, attesting
that in the caucus o. Colonel Robertson's friends
he had at all times advised that only peaceahle
and lawful methods be employed in securing his
rights as Lieutenant governor.
The plaintiff, through his attorneys, Messrs.
Byfed Turpis and Jason Brown, presented an
additional bill and affdavits, covering the pro-
ceedngs of the General Assembly, and reciting
that the plaintiff, A. g. Smith. Senator from
Jennings county had been duly elected presi-
dent pro tenn. OF the Senate, had been re- elected
and was now in actual possession. With great
particularly the parer recited all subsequent
events bearing upon the case that had taken
place in the Senate and House M to the bring
ing OF this proceeding, and asking writ of
custer and damages in the sum of So, 900, with
restraining order to hold until the could DO
finally determined.
Mr.. Byfiad, for tbs plaintiff, announced that
he PROCEEDED In TINS action upon the claims or
the statute 1l3I-1147, which provides that when
an usurption of the functions Of Office is at
tempted or made, a judgment of custer may be
asked. He said that in the joint sessions of the
Legislature, the President of the Senate has a
right to preside; that. Monday last this right,
to the detriment of the plaintiff, was usurped by
the defendant; that, to grant writ of injunc-
ton or custer. will not deprive the public of the
services of a ACKNOWLEDGEMENT for the plant
tiff A. G. Smith, is in part possessor of the duties
Of the Office, and ready and competent to fill the
functions.
Attorney general Kitchener denied the jur;s-
d!ction of the court to proceed by an informa-
ton IN quo warranto to test the question as to
the title to the Office by either of the parties
and to thus prevent the exercise of any of the
functions of the Office by the defendant. He
said the duties of the Office of Lieutenant-gov-
ernor are either ministerial legislative, execu-
tive or political Under some circumstances a
court might command or enjoin the performance
of mere ministerial duties, but court can in
terfere with the performance of any executive,
legislative or political duties Of officer or re-
strain de facto officer, or even an usurper,
from performing any of the functions of his Of
= flee. Public policy requires that an office shall
botsiicd nrd ass-tiutioe perforrnsd.s even though
tire man in the Office is not the rightful officer
Tie challenged the plaintiffs counsel to produce
one decision which holds that court of equity
may expei de facto officer even an intruder
from an Office; that If de facto officer or an in
truder is in possession Of Office it is clear
that the de jure officer is not in possession of it.
from exercising the duties of the Office it could
not put the de jure officer in possession of the
Office From which, ne said it followed that the
Office would be without any occupant, and there
would be no one to perform its duties, a state of
facts which all the cases showed the courts will
not permit to exist.
In this connection the Attorney general cited
numerous decisions in various States as we'll as
Indiana, making formidable array of authority
for the position he held. He claimed that the
defendant in this case is not only performing the
duties OF the Office of Lieutenant governor, but
is tho officer de jure, having been declared by the
Speaker of the House of Representatives, in &C
cordance with the Constitution and with tine
election returns the Lieutenant governor. That
In the performance OF that duty the Speaker ex-
ercises political power vested in him by the Con.
stitution, with which no court save the General
Assembly itself control or interfere Again,
the purpose of this information in quo warrantc
is to contest the election of the defendant and
determine whether not he is rightfully en-
titled TO the Office of Lieutenant governor. II
other words. this is a contested election. pure
anf 7..uple; but this court has no jurisdiction Of
~ontested election case where the Office oil
Governor or Lieutenant governor is involved
Section g. Article ), of the Indiana Constitution
reads Contested elections for Governor OF
Acknowledgements shall be determined by the
General Assembly in such manner as may bt
prescribed by law" This section name.
the forum, ard the Legislature, by sec
tions 4743 to ALAG, inclusive, has pre-
scrbed the procedure. These section.
provide that when any ciector may choose to
contest the election of any State officer he shall
I within twenty days after the first day of the
81 next session of the General Assembly, delive
to the Speaker of the House specifications o
contest Notice is then served on the contestee
and q committee of seven is chosen from tn,
House. and similar committee in the Senate
who hold their meetings publicly, and have
power to send for persons and papers Tni
committee report their Judgment to both houses
and in Sec. ALAG it is enacted that "the judg
ment of such committee shall be conclusive. /
such an election be judged invalid, such Office
shall be vacant" 1t is thus seen that jurisdic
ton of this case is vested in the General AS
sembly alone; that the method of trying the cas-
is prescribed by the statute and that the iudg
ment of that tribunal is conclusive. This put